A state appeals court has decided that there is “no serious question” that naked dancing in a strip club, “at a bare minimum,” does not meet the definition of choreographed performances that would relieve the club from paying state sales taxes on drinks and cover charges. The Appellate Division, Third Department, ruled unanimously to uphold the opinion of the Tax Appeals Tribunal, which overturned a tax appeals’ officer’s finding that the pole and lap dances performed at Nite Moves in the Albany suburb of Latham are dramatic or musical arts that would have exempted the club from nearly $125,000 in state sales taxes, plus interest (NYLJ, March 26, 2009, April 27, 2010).
In Matter of 677 New Loudon Corporation v. State of New York Tax Appeals Tribunal, 509464, the Third Department said that the testimony from the one Nite Moves dancer in the record showed that she had not had any formal artistic training, but relied on suggestions from her coworkers or from DVDs for the moves she used to entertain. As such, there is a “dearth” of evidence to suggest that the naked dancers are providing a dramatic or artistic performance versus one designed for adult entertainment, the court ruled in a decision by Justice John C. Egan Jr. Justices Karen K. Peters, William E. McCarthy, Edward O. Spain and Elizabeth A. Garry concurred. The club’s attorney, W. Andrew McCullough of Midvale, Utah, said Friday he is likely to appeal the ruling.